June 28, 2016
Cross-posted from: Louise Whitfield
Originally published: 16.06.16
HOW LEGISLATION PROTECTS WOMEN-ONLY SPACES AND SERVICES:
by Louise Whitfield, Public Law Specialist and Partner at Deighton Pierce Glynn
This briefing is designed to highlight the existence of legal protections for women-only activities, spaces and services to help ensure that these rights are properly understood and to avoid misinterpretation that may threaten their existence. The following topics are dealt with below:
Summary of what is and isn’t covered by the Equality Act 2010
When discrimination is lawful
When discrimination against women-only events is unlawful
The legal responsibilities of public bodies
This briefing does not detail all the protections available under the Equality Act 2010 for all groups in all areas – or set out the principles which underpin the Act – except where it is relevant to the rights of women. It is designed to be understood by non-lawyers. Further information is also provided in appendices in terms of the specific provisions of the Act and other resources.
WHAT IS AND ISN’T COVERED BY THE EQUALITY ACT 2010
The Equality Act 2010 is the main piece of law in England, Wales and Scotland to protect particular groups from disadvantage or unfair treatment*. It bans discrimination against certain groups in certain activities. Discrimination essentially means treating people less favourably because of a “protected characteristic”. A protected characteristic means someone is entitled to legal protection on the grounds of a particular feature, for example their sex.
The list of protected characteristics is set out in section 4 of the Equality Act and can be found in appendix 1 of this briefing, along with definitions of the main types of discrimination that are relevant: direct, indirect and harassment.
Biological sex and gender re-assignment are two of the relevant ‘protected characteristics’ as they relate to women-only spaces and services.
The specific areas or activities covered by the different parts of the Act that are relevant are:
services and public functions
Anti-discrimination laws do not cover anything else you do or plan to do. Private activities are NOT covered by these anti-discrimination laws.
*1. The Equality Act 2010 does not apply in Northern Ireland which has a range of different pieces of legislation prohibiting discrimination.
WHEN DISCRIMINATION IS LAWFUL
Generally, the Equality Act doesn’t allow for discrimination against those with ‘protected characteristics’ who want to use a service. However, there are exceptions in certain circumstances.
If you are providing a service, you can provide it for women only under paragraph 27 of Schedule 3 of the Act (which is set out in Appendix 2). This states that if the targeted provision is a proportionate means of achieving a legitimate aim and the services meet ONE of six conditions (for example only people of that sex need the service), it is lawful to provide it to women only. You can find all the conditions in Appendix 2.
In addition, paragraph 27 makes clear that, if a public body exercises a public function relating to the provision of a single-sex service, they are also covered by these exceptions. This covers “back-room” activities and decisions, about administration, management and finance. So a local authority funding a women-only refuge can do this lawfully; or they can let women’s groups use their buildings or facilities to provide women-only services.
The examples for lawful single-sex services given in the notes that were published with the Equality Act include the following:
• a cervical cancer screening service to be provided to women
only, as only women need the service;
• a domestic violence support unit to be set up by a local
authority for women only but there is no men-only unit
because of insufficient demand;
• separate male and female wards to be provided in a hospital;
• separate male and female changing rooms to be provided in
a department store;
• a massage service to be provided to women only by a female
massage therapist with her own business operating in her
clients’ homes because she would feel uncomfortable
massaging men in that environment.
Women’s projects or organisations may find guidance from the Equality & Human Rights Commission useful. This is because they explain how it is lawful to provide single-sex services; (see the link in Appendix 4 to “What equality law means for your business”, specifically pages 16 and 17).
Paragraph 28 of Schedule 3 of the Act also makes it lawful to refuse to provide single-sex services to someone on the basis of their gender reassignment. Again
this needs to be objectively justified – the provision of single-sex services must be a proportionate means of achieving a legitimate aim. The example given in the explanatory notes that accompany the Equality Act is as follows:
“A group counselling session is provided for female victims of sexual
assault. The organisers do not allow transsexual people to attend as
they judge that the clients who attend the group session are unlikely to
do so if a male-to-female transsexual person was also there. This
would be lawful.”
This issue is also covered in the EHRC’s guidance at page 17 which is relevant to women’s projects or organisations providing single-sex services: “Although a business can exclude a transsexual person or provide them with a different service, this is only if it can objectively justify doing so”. “Objective justification” means that you have a legitimate aim (a good reason) for providing a particular service, and that making it women only is a proportionate (reasonable – not ‘over the top’) way of meeting that aim. For example, a domestic violence organisation might have a legitimate aim of ensuring women feel safe because otherwise they will not want to access the services, and it would be proportionate to restrict your service to females to ensure that it is effective.